¹ [1985] 3 W.L.R. 830. See J. A. Jolowicz, [1986] C.L.J. 1 and A. Grubb, [1986] C.L.J. 3 for assessments of the case.

² For pre-Gillick discussions of the concept see Eekclaar, J. M., “What are Parental Rights?” (1973) 89 L.Q.R. 210Google Scholar; Dickens, B. M., “The Modern Function and Limits of Parental Rights” (1981) 97 L.Q.R. 462Google Scholar; and Maidment, S., “The Fragmentation of Parental Rights” [1981] C.L.J. 135.Google Scholar

³ Supra, at p. 855.

⁴ S.I of the Guardianship of Minors Act 1971.

⁵ This contrasts with the concept of parents' rights which is entrenched at common law and recognised in legislation. See s.85(1) of the Children Act 1975.

⁶ Examples are the often-cited description of access as a right of the child by Wrangham J. in M. v. M. [1973] 2 All E.R. 81, 85, and Heilbron J.'s view in Re D. (Sterilisation) [1976] Fam. 185, 193, that a mentally retarded girl had a human right to reproduce.

⁷ The extensive literature on the concept of children's rights is reviewed by M. D. A. Freeman in “The Rights and the Wrongs of Children” (1983).

⁸ In Re Gault 387 U.S. 1, 13 (1967). Fortas J. stated that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”

⁹ The constitutional cases affecting children's rights are extracted in Wadlington, W.. Whitebread, C. H. and Davis, S. M.. Children in the Legal System (1983). Ch.II.Google Scholar

¹⁰ H.N. (80) 46.

¹¹ [1984] O.B. 581.

¹² [1985]2 W.L.R. 413.

¹³ This was the argument which found favour with the Court of Appeal. Parker L.J. said that the parent's rights to custody entailed “the right and duty completely to control the child subject always to the intervention of the Court.” at p. 540.

¹⁴ 431 U.S. 678(1977).

¹⁵ Per Brennan J. at p. 685.

¹⁶ The Supreme Court applied the “significant” state interest standard rather than the higher “compelling” state interest standard. This is because greater state intervention with the privacy right of children (as opposed to adults) is justified by the state's duty to protect children.

¹⁷ Ibid., p. 715.

¹⁸ Powell J. thought that one of the reasons why the statute was unconstitutional was that it prohibited parents from distributing contraceptives to their children and that this restriction unjustifiably interfered with parental interests in child-rearing. Ibid.. p. 708.

¹⁹ 428 U.S. 52(1976).

²⁰ The reconciliation of conflicting constitutional rights is examined by H. Wingo and S. N. Freytag in “Decisions Within the Family: A Clash of Constitutional Rights” 67 Iowa Law Rev. 401 (1982).

²¹ This right has been upheld on many occasions by the Supreme Court. See. e.g.. Ginsberg v. New York 390 U.S. 629 (1968); Wisconsin v. Yoder 406 U.S. 205 (1972).

²² 393 U.S. 503(1969).

²³ B. Hafen. “Children's Liberation and the New Egalilarianism: Some Reservations about Abandoning Youth to their Rights” (1976) Brigham Young Univ. Law Rev. 605. 646.

²⁴ Sec, e.g. Parham v. J.R., infra, n.86.

²⁵ [1985] 3 W.L.R. 830. at p. 853.

²⁶ Ibid, at p. 841.

²⁷ Op. cil.. n.2. supra. at p. 471.

²⁸ [1984] Q.B. 581. at p. 596.

²⁹ Op. cil.. n.2. supra. at p. 462.

³⁰ S.36 of the Education Act 1944.

³¹ S.1 of the Children and Young Persons Act 1933.

³² Glanville Williams. “The Gillick Saga–II” (1985) 135 N.L.J. 1179. 1182.

³³ See, e.g., R. v. de Manneville (1804) 5 East 221; Re Agar-Ellis (1883) 24 Ch.D. 317; and Symington v. Symington (1875) L.R. 2 S.C. and Div. 415.

³⁴ S.1 of the Guardianship of Infants Act 1925, now re-enacted in s. 1 of the Guardianship of Minors Act 1971.

³⁵ S.1(1) of the Guardianship Act 1973.

³⁶ S.I of the Guardianship of Minors Act 1971 as interpreted by the House of Lords in J. v. C. [1970] A.C. 668.

³⁷ These developments are traced by J. C. Hall in “The Waning of Parental Rights” [1972B] C.L.J. 248.

³⁸ Supra, n.12.

³⁹ Re B. (A Minor) (Medical Treatment) [1981] 1 W.L.R. 1421.

⁴⁰ Re P. (1982) 80 L.G.R. 301.

⁴¹ Re D. (Sterilisation), supra n.6.

⁴² E.g., the legal relationship between parent and child has been described as analogous to that of trustee and beneficiary, the object of the trust being the promotion of the child's welfare. See Dingwall, R., Eekclaar, J. and Murray, T., The Protection of Children—State Intervention and Family Life(1983)at p. 224.Google Scholar

⁴³ It has been argued that the discretion given by the best interests doctrine is too broad and gives rise to value-laden judgments. See Mnookin, R.. “Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy” (1975) 39Law and Contemporary Problems 226.Google Scholar

⁴⁴ Law Com. No. 118. para. 4.19 (1982).

⁴⁵ [1984] 3 W.L.R. 186.

⁴⁶ (1985) 129 S.J. 431.

⁴⁷ This argument was based on reservations expressed by Lord Bridge in R. v. D. [1976] Fam. 185.at p. 188.

⁴⁸ See Krishnan v. Sutton L.B.C. [1970] Ch. 181 and the remarks of Lord Denning M.R. in Hewer v. Bryant [1970] 1 O.B. 357, 369.

⁴⁹ In R. v. D., Lord Brandon said, “I see no good reason why, in relation to the kidnapping of a child. it should not in all cases be the absence of the child's consent which is material, whatever its age may be.” [1976] Fam. 185, 197.

⁵⁰ [1985] 3 W.L.R. 830, at p. 844.

⁵¹ S.1 of the Family Law Reform Act 1969.

⁵² Useful lists of the various statutory provisions are to be found in Freeman. “Coming of Age?” [1977] LAG Bull. 137 and “At what age can I?” Childright. Sept. 1984 at p. 11.

⁵³ S.5 of the Children and Young Persons Act 1933.

⁵⁴ S.50 of the Children and Young Persons Act 1933 as amended by s 16 of the Children and Young Persons Act 1963.

⁵⁵ S.22 of the Firearms Act 1968.

⁵⁶ S.58 of the Education Act 1944.

⁵⁷ S.1(1) of the Supplementary Benefit Act 1976 as amended by the Social Security Act 1980.

⁵⁸ S.4 and s.96 of the Road Traffic Act 1972.

⁵⁹ S.I of the Family Law Reform Act 1969.

⁶⁰ E.g.. parliamentary candidates and candidates at local elections are required to be 21 years of age—Representation of the People Act 1949.

⁶¹ Op. cil.. n. 7. at p. 7.

⁶² [1985] 3 W.L.R. 830. at pp. 839–840.

⁶³ Ibid., at p. 855. His Lordship thought that this principle had been recognised in Blackstone's Commentaries. 17th ed. (1830). Vol. I.chs. 16 and 17.

⁶⁴ Ibid.

⁶⁵ Ibid., at p. 853.

⁶⁶ Lord Fraser said that a doctor would require to be satisfied on five matters before proceeding without parental consent, viz. (1) that the girl will understand his advice; (2) that he cannot persuade her to inform her parents or allow him to do so; (3) that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment: (4) that unless she receives advice or treatment her physical or mental health or both are likely to suffer; and (5) that her best interests require him to act without parental consent. Ibid., at p. 844.

⁶⁷ John, Eekelaar. “The Eclipse of Parental Rights” (1986) 102 L.O.R. 4. at p. 8.Google Scholar

⁶⁸ (1984) 5 F.L.R. 811. sub nom. H. v. Lambeth London Borough Council.

⁶⁹ For a criticism of the decision see Bainham. [1984] J.S.W.L. 290.

⁷⁰ The procedures for ascertaining the wishes of children in legal proceedings are reviewed by Maidmement. (1986) 136 N.L.J. 233.

⁷¹ In Re D. (Sterilisation), supra n.6. the evidence disclosed that the consultant paediatrician at Sheffield Northern General Hospital had already performed two sterilisation operations on handicapped girls in that city.

⁷² An extreme form of liberationist thinking favours the complete assimilation of the legal position of children and adults. See R. Farson. Birthrights (1974) and J. Holt. Escape from Childhood (1974).

⁷³ A discussion of the mature minor rule is to be found in Wadlington. “Minors and Health Care: The Age of Medical Consent.” 11 Osgoode Hall L.J. 115. 117–120 (1973).

⁷⁴ It should be noted however that under these statutes the doctor is often given a discretion to inform parents once the treatment has taken place. For a discussion of these statutes see Mnookin, R., Child. Family and State (1978) at p. 376.Google Scholar

⁷⁵ ABA Juvenile Justice Standards—Standards Relating to the Rights of Minors, 4.2. 4.8.

⁷⁶ The doctrine of emancipation is discussed by Katz, Schrocder and Sidman. “Emancipating our Children—Coming of Legal Age in America.” 7 Fam. L.Q. 211 (1973) and Cady.”Emancipation of Minors”—12 Conn. L.R. 62 (1979).

⁷⁷ This form of statutory emancipation exists in England, s.8 of the Family Law Reform Act 1969 being an example.

⁷⁸ Extracts of emancipation statutes in California and Connecticut respectively, are set out in Wadlington, Whitebread and Davis, op. cil.. n.9. supra, at pp. 38–41 and 45–46.

⁷⁹ California Civil Code. Emancipation of Minors Act (1978. as amended 1979) s.64.

⁸⁰ It is interesting to note that the Supreme Court in Carey thought that the decision on whether to make contraceptives available to adolescents was a moral not medical decision. The Court thought that it was not a suitable decision to leave in the hands of doctors and feared that it might be exercised arbitrarily. See Brennan J. 431 U.S. 678 (1977), at p. 699.

⁸¹ See, e.g.. Re B. (A minor) and Re D. (Sterilisation), supra. n.6 and n.38.

⁸² This was regarded as fourteen for boys and sixteen for girls. See, e.g., R v Howes (1860) 3 El & El. 332.

⁸³ Re W. (A minor) (1985) 129 S.J. 523. where the parents warded the girl and invited the court to place her in the care of the local authority on the basis that she was beyond their control. The court made the order under its inherent jurisdiction since the statutory care jurisdictions do not extend to children who have attained seventeen years.

⁸⁴ John, Eekclaar. “The Eclipse of Parental Rights” (1986) 102 L.O.R. 4. at p. 5.Google Scholar

⁸⁵ Planned Parenthood of Central Missouri v. Danforlh. supra. See also Bellotti v. Baird 433 U.S. 622 (1979). Contrast H.L. v. Matheson 450 U.S. 398 (1981). in which the Supreme Court upheld a Utah statute requiring a doctor to “notify if possible” the parents of a minor upon whom an abortion was to be performed, at least as respects a girl living at home who has not established that she is mature or that notification would lead to serious harm.

⁸⁶ Parham v. J.R. 442 U.S. 584 (1979).

⁸⁷ Before the Best Interests of the Child (1980).

⁸⁸ John Eekelaar, “Parents and Children: rights, responsibilities and needs” (1983) Adoption and Fostering, No. 2, pp. 7. 9.

⁸⁹ Dingwall, R. and Eekelaar, J., “Rethinking child protection”. in The State, the Law and the Family. ed. Freeman, M. D. A. (1984). at pp. 104–105.Google Scholar

⁹⁰ (1982) 4 E.H.R.R. 293.

⁹¹ The Bill was defeated in the House of Lords on 4 July 1985. when an amendment favouring total abolition of corporal punishment in all schools and child care institutions was approved.

⁹² The “equality principle” as a basis for children's rights in put forward by Eekelaar in Family Law and Social Policy. 2nd ed. (1984). at p. 175.

⁹³ S.18 of the Child Care Act 1980 and s.3 of the Children Act 1975.

⁹⁴ S.6 of the Sexual Offences Act 1956.

⁹⁵ Glanville Williams. “The Gillick Saga” (1985) 135 N.L.J. 1156. 1157.

⁹⁶ The majority in the House of Lords was largely content to adopt the judgment of Woolf J. on the criminal law question.

⁹⁷ Lord Brandon thought parental consent irrelevant to the question of criminal liability. Lord Templeman thought that a doctor would not commit the offence if he acted with parental consent. [1985] 3 W.L.R. 830, at p. 868.

⁹⁸ Ibid., at p. 865.

⁹⁹ Ibid., at p. 866.

^{page 281 note 1} Ibid., at p. 860.

^{page 281 note 2} Ibid., at p. 863.

^{page 282 note 3} It is on this basis that the girl herself cannot be liable as an accessory to the offence under s.6. See R. v. Tyrell [1894] 1 Q.B. 710.

^{page 282 note 4} The policy arguments are discussed by Glanville Williams, op. cil.. nn.32 and 95. supra.

^{page 282 note 5} [1985] 3 W.L.R. 830. p. 871.

^{page 282 note 6} Childright, Nov./Dec. 1985. at p. 18.

^{page 282 note 7} Discussed by M. Zander, in The Law-Making Process. 2nd. ed. (1985) at pp. 240–242.

^{page 282 note 8} The court did not have to rely on this evidence since the appellants conceded that there was no evidence that teenage sexual activity increased in proportion to the availability of contraceptives.

^{page 283 note 9} See Foster and Freed, “A Bill of Rights for Children,” 6 Fam. L.Q. 343(1972). On the debate in England, see M. Zander, A Bill of Rights? 3rd. ed. (1985).

^{page 283 note 10} The procedural aspects of Gillick are discussed by J. A. Jolowicz. [1986] C.L.J. 1.

^{page 283 note 11} Liddle v. Sunderland B.C. (1983) 13 Fam. Law 250; R. v. Solihull M.B.C., Ex parte C. [1984] F.L.R. 363; R. v. Avon C.C., Ex parle Koumis [1984] Legal Action. Dec. p. 149.

^{page 283 note 12} See J. Levin. “Interested Parties” [1985] Legal Action, Oct., p. 10.

^{page 284 note 13} This was the assessment of the Children's Legal Centre. See Childright. Nov./Dec. 1985 at p. 11.